/3/ In this more intelligible form, the
rule would not now prevail. But one half of it, that a guest at a
tavern has not possession of the plate with which he is served,
is no doubt still law, [227] for guests in general are likened to
servants in their legal position. /1/
There are few English decisions, outside the criminal on the
question whether a servant has possession. But the Year Books do
not suggest any difference between civil and criminal cases, and
there is an almost tradition of courts and approved writers that
he has not, in any case. A master has maintained trespass against
a servant for converting cloth which he was employed to sell, /2/
and the American cases go the full length of the old doctrine. It
has often been remarked that a servant must be distinguished from
a bailee.
But it may be asked how the denial of possession to servants can
be made to agree with the test proposed, and it will be said with
truth that the servant has as much the intent to exclude the
world at large as a borrower. The law of servants is
unquestionably at variance with that test; and there can be no
doubt that those who have built their theories upon the Roman law
have been led by this fact, coupled with the Roman doctrine as to
bailees in general, to seek the formula of reconciliation where
they have.
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